Keeping tabs on UBC law and beyond…

Quebec’s Charter of Values: actually of little value

It’s quite likely that the recent proposed Quebec Charter of Values has caught your eye (hopefully your third)… or maybe you simply ignored it because the Anglophones of this country, since well before the 1880’s, have been so accustomed to Quebec rattling its cage that it can no longer be heard – nothing new under the sun. This is not to say that their pleas are invalid, but rather that Quebec’s ‘cultural identity’ has forced the rest of Canada into some serious constitutional, political, cultural, and philosophical ponderings quite consistently throughout our brief, lovely history as cozy Canada.

The main point of the legislation is to prohibit the wearing of ‘conspicuous’ religious symbols by state personnel (cops, politicians, etc.) in carrying out their roles, in order to ‘reflect state neutrality’ – a statement as loaded with controversy as my poutine is with gravy.

This of course indicated to me the persistence of Quebec’s need to reassert its cultural identity in the face of not only a history of Anglophones, but of the more recent waves of religious immigrants that have been welcomed into our country over the last century.

These religious inhabitants enjoy the same protection as the original French Catholic inhabitants, under the Canadian Charter of Rights and Freedoms — a lovely document — section 2: “Fundamental Freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion, and expression”. (You could easily argue that religious garments are a part of the freedom of expression, as much as they are exercising freedom to religion). In essence, the charter was so designed to safeguard minority rights and freedoms from a possible oppressive majority that intends to encroach on those rights because it finds them distasteful, irrational, or other predilections unrelated to anything lawful.

One of Quebec’s arguments may be that the freedoms above are subject to the reasonable limits clause of the charter, which tells us that a violation of our charter rights must not also trample democracy and freedom; it has to be reasonably justified in accordance with these principles. The question that seems to require answering so far is thus: can the imposition of the value of secularism by a province be enforced by an act, while trumping the charter right to freedom of religion, consistently, in a just, democratic, and free society? We might wish to look to France to see how they’re faring with similar legislation. This issue is a deep one which I cannot fully explore, but there are a few things I have noticed apart from the red-flag constitutional issue.

First, Quebec’s legislation appears to work in a very, very sneaky way to disadvantage minority religious groups, even though the ban would be on all religious symbols, including that of the dominant, white, francophone population of Quebec: the crucifix. Think about which religious groups find it of paramount importance to wear their religious symbols in accordance with their beliefs. Jews, Muslims, Sikhs, Hindus, for instance usually consider their religious symbols as indispensible to their identity, culture, and purpose. Of course, so do many Christians and Catholics, but perhaps, as the majority, they could withstand the blow of such a piece of legislation, while many minorities could not.

It is possible to construe this as an issue of the empowering will of the majority over the minority, because the majority does not need to exert itself or protect its values or symbolism to stay afloat as much as a minority group does. At the end of the day, the dominant Québécois religious culture will stay intact, yet the minorities may fearfully cling to whatever is left of their religious culture because of the proposed legislation. Although this consequence could conceivably be unintentional, there is also good reason to think Quebec’s identity-anxiety factors in here.

Second, we should be critical of Quebec’s reasoning regarding secularism. The essence of secularism is to separate church and STATE. It is one thing to say that the state is investing in, say, the Catholic Church, or that the Pope has the power to create provincial legislation, and a whole different thing to say that the government invests in public officials who need to perform functions that we’d need in a secular society anyways, but these officials may display their own personal beliefs. This to me is in no clear way an imposition of religion on the state, or an involvement of the state in religion. The secularism being thrown around here is more likely Quebec’s masquerading of its cultural insecurities, of its separatist aspirations, and other fanciful things.

Whatever comes of the constitutional issue, which I think most of Canada actually agrees on anyways (that the statute violates the charter freedom of religion), let me leave you with the words of J.S. Mill: “The only part of conduct of any one, for which he is amenable to society, is that which concerns others. In the part, which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” (By ‘he’, Mill means she too)

5 thoughts on “Quebec’s Charter of Values: actually of little value”

1) The proposed Charter would not apply to politicians sitting in the National Assembly.

2) The legislation has some very odd rules and exceptions when it comes to the treatment of various symbols. It seems likely that long beards will not be banned (saving male Muslims some problems), nor will small symbols (crosses on necklaces). Finally, certain symbols that are parts of “cultural heritage” will not be hit (the infamous crucifix in the National Assembly).

3) I would be shocked if the government of Quebec chooses not to use the notwithstanding clause on this one.

In answer to your poll question, I do believe Quebec’s Charter will be inconsistent with our Charter rights (ss. 2 and 15) and would not be a “reasonable limit” via s. 1. Even if prohibiting public servants from wearing religious symbols to encourage secularism could ever be considered a reasonable limit on religious freedom, the immunity given to certain religious symbols (e.g. crosses which will be exempt from “Quebec’s Charter) would most certainly be considered an unreasonable violation of our s.15 equality provision guaranteeing equality regardless of religion.

However, if Quebec chooses to enact the legislation with a notwithstanding clause via s.33, I suppose it would be constitutionally valid. Because, as far as I understand (as an ignorant 1L), the government can violate all the Charter rights it wants as long as it explicitly says it is doing so in accordance vis-a-viz s.33.

Walt, what about the power of disallowance? Have we abolished it completely? Would it apply? I’m asking because I don’t know. I wonder how far such a back-and-forth could go.. for example.. Quebec’s statute is struck down as unconstitutional, it enacts s33, allowing it to be exempt from the charter, and then the federal government uses its dusty and rusty power of disallowance to strike out the legislation again. I don’t think we’ve used those powers since the 19th century, but they are still technically in the constitution, which would make for some interesting debate.. and a very complex issue.